Her Majesty the Queen v. Khan

Criminal law — Evidence — Hearsay — Accused police officer convicted of sexually assaulting complainant by purporting to search her
while transporting her to police station — Complainant protesting that
she had already been searched three times when female police officer at
police station told her that she was going to search her — Trial judge
erring in admitting that statement under principled exception to hearsay rule — Requirement of necessity not met as complainant testified at
trial and there was no indication that she was unable to recall significant details of incident.

Criminal law — Evidence — Prior consistent statements — Accused
police officer convicted of sexually assaulting complainant by purporting to search her while transporting her to police station — Complainant protesting that she had already been searched three times when
female police officer at police station told her that she was going to
search her — Trial judge not erring in admitting that statement under
narrative as circumstantial evidence exception to rule that prior consistent statements are not admissible — Trial judge properly using
statement for purpose of evaluating context in which initial complaint
arose, its timing and its spontaneous nature to assist him in assessing
truthfulness of complainant’s testimony.

The accused, a police officer, was charged with sexually assaulting the complainant by purporting to search her while transporting her to the police station.
When the complainant arrived at the police station, a female officer advised her
that only she would search her. The complainant became emotional and upset
and stated: “I’ve already been searched three times, why are they searching me
again”. The trial judge admitted that statement under the res gestae exception to
the hearsay rule. He noted that the statement was also admissible under the
principled approach to the hearsay rule. The accused was convicted. The summary conviction appeal judge allowed his appeal and ordered a new trial on the
basis that the trial judge erred in admitting and relying on the complainant’s
prior consistent statement. The Crown appealed.

Held, the appeal should be allowed.

Per Hourigan J.A. (LaForme, Pepall and B. W. Miller JJ.A. concurring): As the
summary conviction appeal judge did not address the res gestae issue, perhaps
because the Crown conceded on appeal that the preconditions of the res gestae
exception to the hearsay rule were not met, it was unnecessary to deal with
that issue.

The trial judge erred in admitting the statement under the principled exception to the hearsay rule. The requirement of necessity was not met as the complainant testified at trial. The necessity requirement does not require that the
witness be absent or unable to give evidence. It can be satisfied where the witness is unable to give a full and frank account of events, or where the witness has
difficulty recalling significant details of the event. In this case, the complainant